Editorial

Time for a Makeover for EU Takeovers?

The regulation of takeovers, i.e. the acquisition of a company by an outside investor, is a very controversial aspect of company law and corporate governance. In the EU, takeovers of companies listed on the stock market are regulated by the Directive on Takeover Bids from 2004. Under this Directive workers have rather weak information rights regarding the impact of the takeover on employment and other aspects. The current review of the Directive is a window of opportunity to strengthen worker rights in the interests of sustainable companies and Social Europe. more

By Sigurt Vitols, Head of the Project Group Modes of Economic Governance, Social Science Research Center Berlin and Associate Researcher ETUI

Worker Participation – Transversal issues

Draft EP report on worker involvement, anticipation and restructuring

The European Parliament’s Committee on Employment and Social Affairs has published a draft own-initiative report on information and consultation of workers, anticipation and management of restructuring. The following EP resolution will ask the Commission to adopt a legislative proposal for a directive that aims ‘to promote and facilitate information and consultation in economic change and improve the way in which companies, employees' representatives, public authorities and other relevant stakeholders throughout the Union anticipate, prepare and manage in a socially responsible way corporate restructuring’. The vote of the Committee on Employment and Social Affairs will take place on 19 November 2012.

End in sight: Fitness check of information and consultation directives

The exercise on the ‘Fitness Check’ launched in 2010 by the European Commission on the issue of Information and Consultation, looking at three Directives (Directive 98/59/EC on collective redundancies, Directive 2001/23/EC on transfers of undertaking and Directive 2002/14/EC on information and consultation) is coming to an end with the final synthesis report delivered by the Deloitte Consulting Agency and presented to representatives of the members states’ labour ministries and EU social partners at two meetings in July and October 2012. Deloitte concludes that the directives are ‘broadly “fit for purpose” in terms of promoting a minimum level of I&C throughout the EU/EEA, consistent with the EU social market model, based on four key evaluation criteria: relevance, effectiveness, efficiency and coherence.’ Whereas ETUC agrees in an open letter to DG Employment on the main conclusion, it contradicts Deloitte that there are no incoherencies between the three directives and no gaps. The overall results gathered during the fitness check exercise should be presented in a Commission communication in 2013, outlining the key conclusions and next steps. more

European Company (Societas Europaea, SE) / SCE

1,426 SEs registered in 25 countries – Czech SEs dominant

During the summer period and the first month of the autumn, the pace of SE establishments – in other countries than the Czech Republic – slowed down. As of 1 October 2012 a total of 1,426 registered SEs were listed in the ECDB (see also the updated SE Facts and Figures). Less than one-seventh of the SEs today have been identified by the ECDB as having more than five employees. In practice, however, the number of normal SEs might be significantly higher as a consequence of the persisting gap in employment information caused by insufficient publication rules in the SE legislation. By far the most SEs have been set up by way of a subsidiary and had no employees at the moment of founding. For many, after the so-called activation process – when a company is sold and/or ‘activated’ by its shareholders – this is likely to have changed in the meantime. more

Corporate governance in SEs: Mostly dualistic board system

An SE can freely choose between a monistic (administrative board) or a dualistic board structure (management and a supervisory board). This also applies to countries where for national company forms such a choice does not (yet) exist. Overall, the picture reveals a clear prevalence of SEs governed by a dualistic board structure. However, one has to take into consideration the uneven distribution of SEs throughout Europe: 4 out of 5 SEs are registered in Germany and the Czech Republic, in which national public limited companies must have a two-tier system of corporate governance. In eight of the ten countries with the highest numbers of SEs the majority of SEs have opted for the ‘traditional’ national board system. more

European Works Councils (EWC) / Transnational Company Agreements

Transposition of the EWC recast directive still not complete

As indicated in the last News-Bulletin, 3 EU Member States (Italy, Greece, Luxembourg) did not meet the deadline for transposition (5 June 2011) of the EWC recast directive 2009/38/EC. Since then, in Italy the original Joint Opinion of Social Partners (signed 12 April 2011) was accepted by the Italian government and turned into law and entered into force on 11 August 2012 (Legislative Decree No. 113 of 2012). In Greece the original proposal for a bill was successfully modified after long and intensive efforts on the part of the Greek trade unions and adopted as the Presidential Decree. In Luxembourg the original bill was submitted to Parliament for adoption and the State Council (Conseil d’Etat) has given its opinion. The bill was declined based on criticism that the rules on professional training of employee representatives were simply copied from the Directive and should be substantiated. An amendment prepared by the government modified the bill by referring to the rules on entitlement to professional training, which are applicable to employee delegates.

Impulses on EWC founding by the recast directive? – Recent statistics from the EWC Database

More than a year after the deadline for transposition of the recast directive 2009/38/EC statistics on EWCs from the ETUI database of EWCs show a steady, slow pace of establishment of EWCs. In 2011 only 17 new EWCs were reportedly created, compared to 23 cases in 2010 and 34 in 2009. In 2012 only 6 EWCs are reported to have been established. The data need to be treated with caution, however, as the ETUI database often records developments in EWC figures with a delay. At the same time, both national (predominantly German) and sectoral trade union organisations report an increased number of ongoing negotiations after the entry into force of national transpositions of the EWC recast directive 2009/38/EC. It might thus soon lead to ‘a third wave’ of establishment of EWCs comparable to 1996 and 1999. More information can be found in the recent EWC facts and figures slides available in 7 languages.

European Commission launches consultation on future of Transnational Company Agreements

The European Commission published a staff working document (Transnational company agreements: realising the potential of social dialogue) which is based on the results of an expert group, in which ETUC and European Trade Union Federations have also participated. The Commission has now launched a consultation and has invited ‘parties to share their views on the challenges and opportunities faced by TCAs and on the specific options put forward’. The deadline for the consultation is 31 December 2012.

European company law and corporate governance

Single Market Act II launched – ‘Together for new growth’

On 3 October Commissioner Barnier presented the Single Market Act II with 12 new immediate priorities ‘which the Commission will focus on to support growth, employment and confidence in the Single Market’. In the Single Market Act II, key action 7 is on modernising the solvency rules; most other proposals are on digital services, online payment and the like. According to Barnier, five of the 12 measures could be adopted in 2012, provided there is the political will. Meanwhile, the implementation of the Single Market I (adopted in April 2011) is still ongoing.

Proposal for a 40 per cent gender quota for company boards adopted

After repeated evidence of the ineffectiveness of soft law mechanisms to improve the gender balance on boardrooms (see DG Justice 2012) and following the failure of the last chance of self-regulation (only 20 or so firms signed the ‘Women on the Board Pledge for Europe’), EU Commissioner Reding took a further step. On 14 November the European Commission adopted her revised proposal for a draft Directive which sets a minimum objective of 40 per cent by 2020 for members of the under-represented sex for non-executive members of the boards of publicly listed companies in Europe. Member States would have to lay down ‘appropriate and dissuasive sanctions’ for companies in breach of the Directive (see press release). The proposal faces strong disapproval, not least from a UK-led coalition of nine EU Member States opposed to any binding measures.

European Commission's summary of the responses to the Company Law consultation

The EU Commission has published a feedback statement which summarises the 496 responses to the public consultation on the future of European company law launched on 20 February 2012. The summary indicates a wide diversity of opinions between different types of groups (trade unions, businesses, lawyers and accountants, etc.) over the purposes of European company law and the need for specific actions on revising existing Directives and undertaking new initiatives. The next step will be the preparation of an Action Plan which sets out the main measures the Commission will take in the coming years concerning EU company law and corporate governance. The communication shall still be adopted before the end of 2012.

Series of European Parliament commissioned studies published

The European Parliament commissioned three studies, which were discussed at the 10–11 October Committee on Legal Affairs (JURI) meeting:

European Social Dialogue

European Commission legislative work programme 2013 – ‘socially empty’ and threat to European social dialogue

On 23 October, the European Commission launched its legislative programme for 2013, which could be considered the most meagre programme ever in relation to actions in the social area. Apart from being an almost blank sheet in this area, the programme also represents a serious threat to European social dialogue at both interprofessional and sectoral level. The European Commission refused – under pressure mainly from one member state – to integrate in the programme proposals for Directives to incorporate three sectoral framework agreements (on health and safety in the hairdressing sector (adopted 26 April 2012), on working conditions in sea fisheries (21 May 2012 – transposing ILO Convention n° 188) and on working time in the inland waterways sector (15 May 2012). This wild attack on sectoral social dialogue might not only endanger the future (outcomes) of interprofessional social dialogue (for example, the eventual framework agreement revising the working time Directive), but certainly makes the Commission lose all credibility when it considers at other high-level forums that (European) social dialogue is the way out of the crisis.

Reports from conferences and workshops

Recent developments in the Czech Republic come to challenge the traditional stakeholder-oriented model of Czech corporate governance as illustrated by the elimination, in the recently revised Companies Act, of the right for workers to be represented on the (supervisory) board of their company and by the absence of any employee involvement right in the still growing number of Czech-based SEs. For these reasons, the ETUI and the Czech-Moravian Confederation of Trade Unions (CMKOS) invited experts in labour law and company law, as well as high-level speakers, to discuss these issues and possible alternatives with the ca. 65 participants (see the conference programme).

ETUI Scenario Lab ‘The Art of the Long View – Building and Working with Scenarios’ – Leiden, NL (11 - 13 /10/2012)

Scenarios do not want to predict the future. Instead, they help us to conceive alternatives, be prepared for several different futures and deal with the risks and opportunities lying ahead of us. In this workshop, participants learned about and exchanged views on the different steps of a scenario-building process. The group will continue working together in an interdisciplinary, cross-border network of people involved in worker participation using the scenario method. The scenario lab is a follow-up of the scenario project ‘Worker Participation 2030’.

On 20 September, the ETUI invited Gregor Murray who is Director of the Interuniversity Research Centre on Globalization and Work (CRIMT), and holder of the Canada Research Chair on Globalization and Work at the School of Industrial Relations at Université de Montréal to present his research on one lever for union renewal, namely multi-level campaigns. Multi-level campaigns consist of new arrangement of actions in which trade unions and civil society actors look for multiple pressure points in order to advance their agenda. more

Publications

ETUI publications

Clauwaert, S. and I. Schömann (2012) ‘The crisis and national labour law reforms’

This ETUI Working Paper maps the labour law reforms in various European countries either triggered by the crisis or introduced using the crisis – falsely – as an excuse. The authors critically address this large-scale deregulation of labour law currently taking place, in areas such as working time, atypical contracts, dismissal law as well as reforms of workers’ representation, collective bargaining and industrial relations systems. The working paper is available in EN, FR, DE, IT and ES and is complemented by an annex providing an analysis of the reforms on a country by country basis. These country studies will be regularly updated and are available and downloadable in English only. more

Just a few weeks before the launch of a new Action Plan on Company Law and Corporate Governance by Internal Market Commissioner Michel Barnier, this Policy Brief seeks to review the stakeholder model of corporate governance that prevails in Europe by looking at the evolution of board-level employee representation rights in the light of national and European developments. more

The ETUI working paper is an update of the synthetic job quality index (JQI) for the EU27 countries. The results point out that the crisis seems to have affected different dimensions of job quality in different ways. Overall, there is a decline in measured job quality and job quality levels in Europe remain highly diverse. There has been a clear increase in the use of part-time and fixed-term contracts and/or in the extent to which workers reported that they were working in such jobs involuntarily. more

Schömann, I. et al. (2012) Transnational collective bargaining at company level. A new component of European industrial relations? Transnational collective bargaining (TCB) has become a hot topic of European industrial relations. The book takes stock of the particular challenges faced by trade union representatives, works councils and employer organisations. It reviews the existing literature on this topic and examines contrasting views of the prospects for subsequent development of this new practice. It also offers some practical suggestions for policymakers who find themselves having to deal with this new component of the Europeanisation of industrial relations. more

Vandaele, K. (2012) ‘Youth representatives’ opinions on recruiting and representing young workers: A twofold unsatisfied demand?’ in European Journal of Industrial Relations, August 2012

Unionisation levels are far lower among young workers than among the workforce in general. How can trade unions become more responsive to their particular interests and needs? Union confederations, even in countries with decentralised union structures, have the potential to take effective initiatives to facilitate and support new organising strategies targeted at young workers, for example by spreading knowledge, practical skills and a vision of relevance for improving the representation and recruitment of young workers. But the survey findings reported here show that youth representatives across Europe find their confederations’ responsiveness and commitment to organising to be inadequate. Their dissatisfaction confirms previous research findings concerning young workers and their unfulfilled desire for unionisation. more

Other publications

TASC (2012) Good for Business? Worker Participation on Boards.

The study conducted by the Irish think tank TASC (Think Tank for Action on Social Change) examines the situation of board-level employee representation (BLER) in Ireland and the role and contribution of the worker directors to the board and to corporate governance. The study is based on the evaluation of interviews with worker directors in state-owned companies, further (non-employee) board members, managers and independent experts. The study concludes that BLER in general has positive effects for companies.

The French Institute for Economic and Social Research (IRES) has dedicated its latest issue of its Revue de l'IRES to the issue of employee participation at European level. The issue includes articles on European Works Councils, the European Company (SE) and transnational company bargaining. All articles are available for free download on the IRES website, abstracts are available in English.

The book describes and reviews current concerns with regard to the conditions of labour markets, production organisations, working conditions and industrial and employment relations. Furthermore, the book explores aspects of the search for socio-cultural innovation in the wide areas of work, industrial, organisational, management and employment relations.